Mr. A. O. Osho & Anor V. Foreign Finance Corporation & Anor (1991)
LawGlobal-Hub Lead Judgment Report
O. OBASEKI, J.S.C.
The plaintiff/respondent in this appeal commenced proceedings against the 1st defendant/respondent. 2nd defendant/appellant and 3rd defendant/appellant by a writ of summons filed in the Ikeja Judicial Division, High Court of Lagos State and the claim endorsed in terms expressed therein reads:
“1. The plaintiff’s claim is for the sum of one million Naira (N1,000,000.00) jointly and severally against the defendants being special and general damages for destruction of plaintiff’s property and goods and trespass committed by the defendants on the land of the plaintiff at Plot No. H Mushin Light industrial Estate Scheme II Mushin and comprised in the Deed of Lease dated 26th January, 1976 and registered as No. 77 at page 77 Volume 1534 of the Lands Registry in the office at Lagos;
- Perpetual injunction restraining the defendants, their agents, servants, assignees from continuing the said trespass on the property and the land.”
In paragraph 2 of the statement of claim, the claim was repeated with slight modification as follows:
“By the actions of the defendants, the plaintiff could not work at the factory thereby losing staff and customers and suffered severe losses financially:
Whereof the plaintiff claims special and general damages against the defendants jointly and severally for the sum of one million Naira (N1,000,000.00 for the destruction of the plaintiff’s property and trespass committed by the defendants on the plaintiff’s …. land situated and lying at Plot No. 10 Block D Matori Industrial Scheme Layout, Mushin Lagos.
Particulars of Special Damages
- Cost of buildings, fence etc. destroyed N470,000.00
- Cost of materials destroyed 80,000.00
- Money lost 21,000.00
- Documents etc. 8,000.00
- Blocks destroyed 60,000.00
At the High Court, there was a 4th defendant named Alhaji R.I. Solomon. Pleadings were filed and exchanged, delivered or served.
In the statement of claim filed by the plaintiff, the plaintiff company, after setting out facts establishing its possessory right pleaded the acts of trespass complained of in paragraphs 13, 14, 19 and 21 as follows:
“13. The plaintiff will show that during the period the 4th defendant came to the site and threatened the plaintiff’s workers there that he will use his position as chairman of the Lagos State Building Materials Company to seize the land in dispute from the plaintiff by force;
- On the 7th November, 1980, the 1st, 2nd, 3rd and 4th defendants with their servants and agents and caterpillars trespassed on the land, broke down the wall fence of the plaintiff; forcibly entered the land and demolished the plaintiff’s buildings at the site. The plaintiff will tender at the trial all the photographs of the wanton destruction of the plaintiff’s buildings by the defendants;
- The plaintiff further reported the matter to the Chairman, LSDPC. Mr. Olateju, i.e. 1st defendant’s Chairman, but the said Chairman openly confirmed that he specifically ordered the defendants to demolish our properties;
- The plaintiff will show at the trial that all the money and documents kept in the plaintiff’s safe in the office were taken away by the defendants.”
The 1st defendant filed its statement of defence which was later amended separately from the 2nd and 3rd defendants.
In its amended statement of defence, the 1st defendant admitted the offer of the plot on lease to the plaintiff/respondent but asserted that when the plaintiff fell into arrears of rent and would not pay after repeated demands, it forfeited the lease. It denied paragraphs 1,4 to 14 and 15 to 21 of the statement of claim and went on to plead in paragraphs 15, 16, 17, 20, 21, 22, 23, 32 and 33 of the amended statement of defence as follows:
“15. The 1st defendant avers that when the plaintiff did not reply any of the letters of demand referred to in paragraphs 13 and 14 above, it was constrained to withdraw this offer made to the plaintiff by a letter reference LS/DPC/IKJ/S.435/10 dated 28th February, 1974. The 1st defendant will rely on this letter at the trial of this action.
- The 1st defendant avers that the plaintiff by a letter dated 11th May, 1974 then forwarded the balance of N4,000.00 (four thousand Naira) in settlement of the two years rent for which a receipt dated 4th June, 1974 was issued.
- The above payment was for the period 3rd June, 1971 – 3rd June, 1973 and this payment was made in arrears;
- The 1st defendant avers that the plaintiff did not reply any of the above letters nor did it come forward to pay up the arrears of rent in respect of this plot which was at 31st March, 1980 stood at N22,969.25 (Twenty two thousand, nine hundred and sixty nine Naira twenty six kobo).
- The 1st defendant avers that subsequent to all these demands, the Lagos State Government then forfeited the plaintiff’s interest in the land as the plaintiff did not utilise the premises nor did it develop the premises contrary to the terms of the allocation;
- The 1st defendant further avers that by a Revocation Order dated 8th February, 1980 brought under section 28 of the Land Use Act 1978 signed by the Commissioner for Economic Planning and Land Matters, Lagos State, the plaintiff’s statutory right of occupancy in respect of Plot No. 10, Block D, Matori Industrial Scheme was revoked. The 1st defendant will rely on this document at the trial of this action.
- The 1st defendant avers that a copy of this revocation order was duly served on the plaintiff;
- The 1st defendant further avers in answer to paragraph 2 of the statement of claim that the plaintiff was never put into possession of the plot of land and cannot therefore have an original copy of the site plan of the land especially as there is such a heavy amount of arrears of rent owing on the property. The 1st defendant will rely on this plan.
LSDPC. No. 1128/SD/D dated 27th August, 1975 at the trial of this action.
The 1st defendant avers that the plaintiff has not paid any rent in respect of the premises since the payment refened to in paragraph 16 above was made.”
The 2nd and 3rd defendants filed their statement of defence. It consists of 10 paragraphs. In paragraph 1 of the statement of defence, the 2nd and 3rd defendants denied that the plaintiff was a lessee and pleaded in paragraphs 3, 4, 5, 7 and 9 as follows:
“3. With reference to paragraphs 3, 4 and 5 of the statement of claim, the 2nd and 3rd defendants admit that the land was offered to the plaintiff by the 1st defendant on the 20th of May, 1971 but aver that the plaintiff’s interest was subsequently forfeited by the 1st defendant by virtue of clause 6 of the offer letter which entitles the 1st defendant to exercise a right of re-entry for non-payment of rent.
- Further and in the alternative, the 2nd and 3rd defendants aver that the interest of the plaintiff in the land has been determined by a revocation of the right of occupancy of the plaintiff by an instrument of revocation dated 8th February, 1980 and issued by the Governor pursuant to the provisions of the Land Use Decree 1978;
- The 2nd and 3rd defendants aver that the land in dispute was allocated to the 3rd defendant by the Governor of Lagos State under powers conferred on him by the Lana Use Decree 1978 on the 7th of August, 1980 and will at the trial rely on the letter of allocation.
- With further reference to paragraph 6 above, the 2nd and 3rd defendants aver that both at the time of inspection before allocation and also at the time they were put in possession after allocation, there was nothing on the dispute land.
- The 3rd defendant upon being put into possession has commenced fencing and building operations on the site and its investment on the site is now over N500,000.”
The 4th defendant also filed a statement of defence of 5 paragraphs. He denied paragraphs 1, 3, 6, 12, and 15 to 20 of the statement of claim. He denied paragraphs 13 and 14 of the statement of claim and pleaded that he did not at any time enter into the land in dispute nor threaten the plaintiff’s workers to seize the land as formulated in the statement of claim. He also denied breaking down the wall fence with caterpillars as agents and pleaded that he did not at any time accompany 1st, 2nd and 3rd defendants to the land in dispute. Finally he pleaded in paragraph 4 that:
“the 4th defendant avers that he did not know the plaintiff and further states that he had never acquired any interest in the land nor exercised any right of ownership over the land.”
The plaintiff filed a reply joining issue on all defences pleaded by the defendants. The issues joined came up for trial before Onalaja, J. After hearing evidence and addresses of counsel, he delivered a well considered judgment:
(a) dismissing the claim against the 4th defendant in its entirety, and
(b) entering judgment in favour of the plaintiff against the 1st, 2nd and 3rd defendants for damages for trespass; and granting an order of injunction against the 1st, 2nd and 3rd defendants.
(c) granting an order of injunction against the 1st, 2nd and 3rd defendants.
These, he set out clearly in his final order which reads:
“For the avoidance of doubt, I set out hereunder the judgment of this Court:
(a) The plaintiff’s claim against the 4th defendant is dismissed in all its entirety;
(b) the 1st, 2nd and 3rd defendants are found liable jointly and severally in trespass in favour of the plaintiff in that the 1st, 2nd and 3rd defendants unlawfully disturbed the possession of the plaintiff on its leasehold interest on the 7th day of November, 1980;
(c) The 1st, 2nd and 3rd defendants are found liable in special damages for the wanton destruction of the plaintiffs properties on the said 7th day of November, 1980 as follows:
(i) the plaintiff’s claim against the 1st, 2nd and 3rd defendants jointly and severally for the sum of N21,000.00 as cash lost during the demolition is dismissed:
(ii) the sum of N10,000.00 is granted in favour of the plaintiff against the defendants jointly and severally as special damages for the pile of cement blocks already made by the plaintiff but destroyed on 7th November, 1980 aforesaid:
(iii) judgment is entered for the plaintiff against the 1st, 2nd and 3rd defendants jointly and severally for the sum of N2,000.00 for lost documents.
(iv) the claim for N80,000.00 for materials of gravel and sands and pellets are dismissed;
(v) for its machines, graders, mixing machines, block making machines and tractors the sum of N70,000.00 is awarded in favour of the plaintiff against the defendants, 1, 2, and 3 jointly and severally;
(vi) for the buildings, warehouse and wall cement block of 2 meters a sum of N120,000.00 is awarded in favour of plaintiff against the 1st, 2nd and 3rd defendants jointly and severally;
(vii) the sum of N2,000.00 is awarded as general damages for the plaintiff against the 1st,2nd and 3rd defendants jointly and severally;
(viii) the 1st, 2nd and 3rd defendants by themselves, their servants and/or agent are hereby restrained by perpetual injunction from going on to the land known, described, designed as Plot No. 10 Block D Matori Industrial Estate, Lagos shown in survey plan No. 1128/SD/D LSDPC made on the 27th day of August, 1975 by Licensed Surveyor Williams edged RED.”
Earlier in his consideration of the evidence adduced, the learned trial judge said:
“(1) after a very careful examination of the evidence adduced before me, I hold that the 1st defendant has not validly determined the lease and the 1st defendant did not at any time in the evidence give such an intention as it regarded the non-payment of rent for several years as arrears of rent and debt owed by the plaintiff to the 1st defendant
(2) in conclusion, the averment of the 2nd and 3rd defendants that Exhibit 18 vests the land in them and extinguishes the rights if any of the plaintiff is misconceived.
(3) my conclusion is that the 2nd and 3rd defendants have not satisfied me that they have better title to the land in dispute than the plaintiff;
(4) From the totality of the evidence adduced before me, I hold and find as a fact that there was a moulding of cement blocks on the land, that all the defence witnesses testified that one man was moulding blocks on a small portion of the land although it was a vacant land used as a playing ground;
(5) the 1st defendant did not determine the lease. If there had been a valid determination of the lease which was to run for 90 years then the 1st defendant would only demand money for use and occupation of the said land.
(6) the 2nd plaintiff’s witness the gateman impressed me a lot. Under cross-examination which was rigorous, vicious and virulent, he remained unshaken, unruffled and confident, that he struck me as a witness of truth.
In addition, the common parlance and saying that photographs don’t lie is applicable in this case. Exhibits 5A, 6A, 7-7E show the wanton destruction of buildings with the debris shown and cement blocks stacked with pulled down roof. Exhibit 7C and Exhibits 7-7B show the wanton destruction of buildings and debris. That Exhibits 6 and 7E show signboard that displays the name of the 3rd defendant.
(7) I therefore conclude that the defendants, their servants and or agents carried out wanton destruction of the plaintiff’s properties on 7th November, 1980 and did extensive damage to the plaintiff’s properties comprising buildings, cement wall fence, office equipment, block moulding machine, block making materials like sand and gravels, documents in the office and cement blocks already moulded for sale.”
The defendants were dissatisfied with the judgment and so took the matter on appeal to the Court of Appeal on six grounds of appeal. These grounds without their particulars are:
“(1) The judgment is against the weight of evidence;
(2) The learned trial judge misdirected himself in law and on the facts by holding that the 1st defendant did not validly determine the lease as the letter of allocation exhibit 10, states categorically that “(6) if Rent is not to be paid in arrears for 21 days after becoming due or else, the authority may re-enter and forfeit the lease”;
(3) The learned trial judge erred in law by holding that the 1st defendant carried out wanton destruction of the plaintiff’s properties on 7th November, 1980 when the photographs tendered as Exhibit did not show any evidence linking the 1st defendant to the exercise.
(4) The learned trial judge misdirected himself by awarding the sum of N120,000.00(One hundred and twenty thousand Naira) as damages for buildings and fence destroyed in the alleged demolition when the plaintiff gave no concrete evidence that there were buildings on the land by way of a building plan and strict proof of this fact as required by law.
(5) The learned trial judge misdirected himself by awarding the sum of N70,000.00 (Seventy thousand Naira) for damage to machines when there was no proof before the court that these machines really existed.
(6) That the learned trial judge erred in law by awarding any special damages at all on the basis of the very scanty evidence given by the plaintiff.”
The Court of Appeal (coram Ademola, J.CA.; Nnaemeka-Agu, J.CA. (as he then was) and Kolawole, J.CA.) dismissed the appeal on the question of liability but allowed it in part on the issue of damages. In the concluding paragraph of his Judgment, Ademola, J.CA. said:
“DAMAGES: The learned judge has rightly found that respondent is still in possession of the plot and that it has been developed and being used for blockmaking. This finding is against the contention of the appellants that the plot is vacant which has not been proved by them at the trial.
The first appellant’s brief dealt exhaustively with the award of damages made and the non-liability of the 1st appellant. My view is that the 1st appellant is liable. The award of special and general damages is quite another matter.
I shall not elaborate on these because I am in entire agreement with the part of judgment of Nnaemeka-Agu, J.CA. (as he then was) in this appeal which has dealt with this issue.”
Nnaemeka-Agu, J.CA. (as he then was) dismissed the appeal as to liability, allowed the appeal against the assessment of special damages but also dismissed the appeal against the award of general damages. He held that the purported exercise of the right of re-entry by the appellant for non-payment of rent was not permissible and was unconstitutional, illegal and void. He also held that the purported revocation pleaded by the appellant was not of the type contemplated by the statute and was therefore unconstitutional, illegal and void. On the issue of allocation to the 3rd appellant by the Land Use Committee, the learned Justice said:
“All I can say from the limited information we have on the point is that the learned judge appears to be correct when he held that the 1st appellant did not satisfy him in its attempt to shift responsibility to the Land Use and Allocation Committee.”
On the question of trespass, the learned Justice concluded that trespass was established when he said:
“In the light of the view I have expressed on the issues of forfeiture and revocation as well as the re-allocation of the plot in dispute, I agree with the learned judge that a case of trespass was made out in favour of respondent.”
On the question of development he said:
“I must confess that I have some reservations about the alleged development of the plot in dispute
…… However, the learned judge is entitled to accept either side of the case before him. So, I leave the above as only my grounds for some reservations and proceed to consider the award of damages. I must mention that the above observations have nothing to do with the issue of trespass. For any interference with the land in possession of another is trespass which will be compensated for by an award of damages. They only go to the issue of aggravation of damages.”
On the issue of damages, the learned Justice said:
“I therefore affirm the award of N2,000.00 as general damages.
The award of special damages is set aside. In the result, subject to the setting aside of the award for special damages, dismiss the appeal and affirm the judgment of Onalaja, J. in the court below.”
Owolabi Kolawole, J.C.A. also delivered a concurring judgment dismissing the appeal with costs. But the learned Justice decided to confine his discussions, observations, comments and conclusions to the proper interpretation of section 34 and section 1 of the Land Use Act. This is clear from the part of his judgment where he stated that:
“The only issue in this appeal with which I wish to content myself is the submission of Chief Williams which relates to the proper interpretation of section 34 and section 1 of the Land Use Act”
After examining and considering the submissions of counsel before the Court of Appeal on the Land Use Act, the learned Justice in conclusion said:
“There is again, in my view, no collision between section 1 and section 34 so the all-embracing provisions of sections I and 2 must prevail. The conclusion which I have reached is that having regard to the provisions of section 38 of the Act which provides:
‘Nothing in this part shall be construed as precluding the exercise by the military Governor…. of the powers to revoke in accordance with applicable provisions of this Decree, rights of occupancy, statutory or customary, in respect of any land to which this part relates.”
Even if section 34 deals with a third category of grant different from statutory or customary right of occupancy, the Governor is empowered under the provisions of section 28 to revoke a right of occupancy whether an actual grant or one deemed to be granted under section 34(2).
For the fuller reasons given in the lead judgment, I also would dismiss the appeal with costs as assessed.”
The 2nd and 3rd defendants were still dissatisfied, so they filed a notice of appeal to initiate their appeal to this Court on nine grounds of appeal. These grounds, without their particulars read as follows:
“1. The learned Justices of the Court of Appeal erred in law when they held as follows:
‘strictly speaking, Professor Kasunmu is right to suggest that the learned Judge went outside paragraph 4 of the reply to hold that the revocation was invalid because the purpose of the exercise of revocation W33 not stated. The learned trial judge decided the issue of vires of the Governor raised in paragraph 4 of the reply against the respondent and that should have been the end of the matter. But, in my view, this would have been a narrow view of looking at the question before him. The learned judge not only has the issue of revocation before him but tied up with it is the issue of re-allocation of the same plot to the 2nd and 3rd appellants who are claiming title themselves. This issue of title is the mainstay of the appellants’ defence in the court below’
- On the assumption that the learned Justices of the Court of Appeal were wrong and that the case was decided outside issues not raised in the pleadings (as contended in ground 1 above), the learned Justices of the Court of Appeal erred in law in holding that the appellate court could still decide the case on those issues of law when the court held as follows:
‘it is here that the submission of Chief Williams becomes relevant’
Replying on Adolf/Stamm International Nigeria Ltd. v. L.S.D.P.C. (supra) that the better course to take is to get on with the hearing of the appeal because both the judgment and the grounds of appeal have raised points of law which this court cannot ignore. If the learned judge happens to be right on the point of law taken, that would be the end of the matter and the objection taken becomes academic but if the judge is wrong that makes a success of the appeal. I am inclined to agree with Chief Williams. The points canvassed in this appeal are so compelling and of great public interest not only to the lawyers but to all the governments in the Federation.”
- ‘The learned Justices of the Court Appeal erred in law in holding that the Lagos State Government was not a necessary party to the action and that even if it (the Lagos State Government) was a necessary party, it should have been joined by the 2nd and 3rd defendants and further that the invitation of the Court of Appeal to the State Government to take part in the appeal (which invitation was not accepted) was enough to cure the non-joinder even if its presence was necessary.’
- Having held that the learned trial judge was in error to say that legal proceedings must be taken in accordance with the Recovery of Premises Law Cap 118 in order to effect forfeiture of the plaintiffs interest for non-payment of rent the learned Justices of the Court of Appeal erred in law in declaring the forfeiture (Ex.19) invalid for non-compliance with the provisions of the State Land Law when
(1) That was not the basis of the decision of the trial court and there was no cross-appeal or application before the Court of Appeal to support the judgment on other grounds;
(2) The provisions of the State Land Act (sic) are implied terms and covenants in State Leases and would not override express provisions in the grant to wit, Clause 6 of the Ex. 10.’
- The learned Justices of the Court of Appeal erred in law in assuming that re-entry provisions in leases (even if as in this case, the re-entry and taking of possession was peaceably (sic)) are unenforceable having regard to the decision of the Supreme Court in Governor of Lagos State and Others v. Ojukwu (1986) 1 NWLR. (Pt. 18) 621, when in fact the Supreme Court’s decision was confined to entry forcibly into possession by the lessor after a determination of the lessee’s interest.’
- The learned Justices of the Court of Appeal erred in law in holding that Ex 10 (the notice of revocation) is invalid because it was not validly served on the plaintiff in accordance with S.44 of the Land Use Act when according to the Court of Appeal itself “there was no part of the judgment of the learned judge that dealt with this issue” and there was no cross-appeal or application before the court to support the judgment of the trial court on grounds other than those set out in the judgment.
- The learned Justices of the Court of Appeal erred in law when they held as follows:
‘The Constitution in section 33(1) (it) lays down that a tribunal adjudicating the right of a person must before reaching a decision give that person a right of hearing. The Land Use Act and the provisions of it are part and parcel of the Constitution of Nigeria. It therefore follows in my view that when a Governor or his official is acting under section 28 of the Land Use Act to revoke the right of occupancy already granted to the person, he is in my opinion in the position of a tribunal under the Constitution who while exercising the power of revocation is adjudicating on the civil right of the grantee, which civil right is inclusive of his property right interest. I think one must import the right of hearing into section 28(1) of the Land Use Act.”
- The learned Justices of the Court Appeal erred in law first in holding that Ex 18 is invalid for not stating the specific public purpose for which the land is required which decision is based on the erroneous belief that the Governor must comply with the provisions of section 33(1) of the Constitution and secondly for its failure to follow the decision of the Court of Appeal (Kaduna Zone) in:
‘which decision is binding on the Court’
- The learned Justices of the Court of Appeal erred in law when they failed to decide one of the issues before the court to wit; whether the learned trial was right in making the 2nd and 3rd defendants jointly liable with the first defendant for the destruction if any of the plaintiff’s property.’”
The plaintiff did not appeal against the decision of the Court of Appeal but on being served with a copy of the notice of appeal filed by the 2nd and 3rd defendants, filed a respondent’s notice in the following terms:
“TAKE NOTICE that upon the hearing of the above appeal the respondent intends to contend that the decision of the Court of Appeal dated the 5th day of February, 1987, at page 498-499 of the record of proceedings where the court having held that the learned trial judge went outside paragraph 4 of the reply to hold that the revocation was invalid nevertheless rejected the contention of the appellants that the decision of the trial judge be set aside on the point shall be affirmed on grounds other those relied on by the court below.
AND TAKE NOTICE that the ground on which the respondent intends to rely is as follows:
- The onus to plead and prove acts constituting valide revocation of the right of occupancy was upon the defendants and the plaintiff was not in any way obliged to plead and prove the invalidity of revocation. In the said premises, the pleadings by the defendants thereupon were superfluous and the point taken by appellant’s counsel is therefore academic.”
Having regard to the grounds of appeal, the appellant formulated eight issues for determination in this appeal in his brief which issues are as follows:
“1. Having regard to the state of the pleadings and issues joined between the parties, was the Court of Appeal right in holding that the trial court could invalidate the revocation of the plaintiff/respondent’s interest for the reasons given in the judgment of the trial court
- If the reasons given by the trial judge for invalidating the revocation were outside the issues joined by the parties on the pleadings, was it proper for the Court of Appeal to invalidate the revocation for those reasons on the ground that the points canvassed are so compelling and of great public interest
- Having regard to the issues raised in the pleadings on the validity of the revocation and particularly in paragraphs 6 and 8 of the reply to the defence, can these issues be effectively determined without joining the Lagos State Government as a party to the action
- If the State Government is a necessary party, who has to move for its joinder, what is the effect of its non-joinder and/or the failure of the State Government to participate in the appeal after being invited by the Court of Appeal
5(A) Can a right of re-entry for breach of a covenant contained in a lease be exercised peaceably by the lessor of land (in the instant case State Land) without resort to the provisions of the State Land Law (Cap. 134 of the Laws of Lagos State) or the Recovery of Premises Law (Cap. 118 of the Laws of Lagos State)
(B) Having held that the trial court was wrong in invalidating the exercise of the right of re-entry by reference to the recovery of Premises Law (Cap. 118) was it proper for the Court of Appeal to proceed to invalidate the exercise of the right of re-entry by reference to the provisions of the State Land Law (Cap.134) when there was neither an appeal nor an application to support the decision of the trial court on other grounds filed by the plaintiff/respondent before the Court of Appeal.
6(a) Must the Governor before exercising his right to acquire land for public purpose under the provisions of the Land Use Act give the grantee or holder of the right of occupancy a hearing in accordance with the provisions of section 33( 1) of the Constitution.
(b) Must the specific purpose for which the land is required be stated in the notice of acquisition or will it be enough just to state on the notice that the land is being required for public purpose or for overriding public interest
- Was it open to the Court of Appeal to hold that the notice of acquisition Ex. 18 was not validly served in accordance with the provisions of the Land Use Act when there was no finding to that effect by the trial judge and there was no appeal to the Court of Appeal on this issue by the plaintiff/respondent.
- Was the Court of Appeal not bound by its previous decision in Dada v. Governor of Kaduna State – FCA/K/12/83 of 30th November, 1984 on the interpretation of the provisions of the Land Use Act which decision is to the effect that the notice of revocation similar to that given in the instant case is adequate.”
On the other hand, the plaintiff/respondent formulated five issues for determination in this appeal. These are:
- Whether it was for the defendants to plead and prove the validity of the revocation of the right of occupancy in accordance with section 28 of the Land Use Act or whether it was for the plaintiff to plead and prove the invalidity of the revocation
- Should the decision of the High Court on the issue of the need to obtain a court order for possession against a tenant be reversed merely because the Court of Appeal took the view on the appropriate law under which an order for possession could be obtained from the courts
- The respondent accept the third issue as formulated by the appellant, i.e. whether the issues raised in the pleadings by paragraph 6 and 8 of the reply to the statement of defence can be properly determined without joining the Lagos State Government as a party.
- Whether or not the Court of Appeal was right in condemning the forcible re-entry by the defendants into the land in dispute on the authority of the Supreme Court decision in Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) p. 621
- What are the procedure to be followed by a Governor before he can validly revoke a right of occupancy under the Land Use Act
The 1st defendant did not appeal against the decision of the Court of Appeal. The 1st defendant/respondent filed a brief in reply to the brief filed and served by the 2nd and 3rd defendants/appellants and formulated therein 7 issues for determination. These are:
(1) What was the position of the plaintiff vis-a-vis the land in dispute having regard to the various correspondence between the plaintiff and the 1st defendant;
(2) Was the land in dispute subsequently developed as claimed by the plaintiff or was it vacant land as claimed by the defendant
(3) Whatever might be the nature of plaintiff’s interest was it in arrears of rent and was its interest validly determined by the 1st defendant after exercising its right of forfeiture and re-entry for non-payment of rent;
(4) Was the revocation and re-allocation of the land in dispute by the Governor to the 3rd defendant valid and its effect on whoever had title plaintiff or 1st defendant at the time of revocation;
(5) Whether the plaintiff’s properties were actually destroyed by the 1st defendant as alleged and the extent of damages suffered by the plaintiff:
(6) Whether the defendants committed the act of trespass complained of by the plaintiff.
(7) Whether the validity of the revocation order and the subsequent allocation could be challenged without the Governor being joined as a party to the suit.
All the issues formulated by both the appellants arise in these appeal/proceedings but the kernel issues are those issues formulated by the plaintiff/respondent.
The plaintiff’s claim was founded and laid in trespass to land but the defendants raised the issue of title the 1st defendant claiming to have determined the lease it granted to the plaintiff by peaceable re-entry the plaintiff having incurred forfeiture of the lease by failure to pay the rent prescribed for several years. The 1st, 2nd and 3rd defendants claimed that the Military Governor revoked the plaintiff’s right of occupancy in respect of the land on the ground that the land was required for public purposes and re-allocated the land to the 2nd and 3rd defendants/appellants.
The short answers therefore to the issues raised by the 2nd and 3rd appellants in their brief may be set out before detailed consideration of the issues.
Issue No. 1
The purposes for which the power of revocation of a right of occupancy was conferred on the Military Governor of a State have been clearly set out in the Land Use Act. Any revocation for purposes outside the ones prescribed even though ostensibly for purposes prescribed by the Land Use Act is against the policy and intention of the Land Use Act and can be declared invalid and null and void by a competent court of law. The Court of Appeal having found on the evidence that the Military Governor revoked the plaintiffs right of occupancy not in the manner and for the purposes prescribed by the Land Use Act was perfectly justified to have declared the revocation invalid, and null and void.
Generally, it is settled principle of law and rule of practice that parties are bound by their pleadings. If on the pleadings an issue of validity of the revocation is joined and evidence is led to establish the invalidity of the revocation, the court cannot escape the duty of declaring the revocation invalid notwithstanding the fact that those reasons or grounds were not pleaded. Invalidity having been pleaded, the failure to plead the evidence is not fatal. See Peenok’s case Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) NSCC Vol. 13 page 477; (1983) 4 NCLR 122; (1982) 12 S.C. 17.
Issue No.3 raises the question of
Non-joinder of Lagos State Government as a party in view of the plea of invalidity of the revocation. The radical title to the land is not in issue and so the non-joinder of the Lagos State Government did not affect the proper determination of the issues joined. There was no complaint of trespass against the Lagos State Government.
Issue No. 4
Since the 1st, 2nd and 3rd respondents rested their defence on the revocation by the Military Governor and re-allocation to the 2nd and 3rd defendants, the defendants’ duty to establish their defence imposes upon them a duty to join the Military Governor as a co-defendant or at least call him as a witness.
Issue No. 5A
A right of re-entry for breach of covenant contained in a lease cannot override the process of recovery prescribed by statute be it the State Land Law Cap 134 of Lagos State or the Recovery of Premises Law Cap J 18,Laws of Lagos State.
Issue No. 5B
The Court of Appeal did not hold that the High Court (Court of trial) erred in holding that the re-entry was invalid. It held that the law under which the 1st defendant can proceed to recover possession of the land is State Land Law Cap 134 Laws of Lagos State. Since there was no appeal on the point, the Court of Appeal should not have proceeded to make the pronouncement. It is however noteworthy that it has not occasioned any miscarriage of justice.
Issue No. 6A
Prudence and the law demand that a Governor revoking a right of occupancy for public purpose or for any purpose should accord all those aggrieved by the revocation fair hearing as provided by section 33(1) of the Constitution if revocation is for breaches of the terms of the certificate of occupancy.
Issue No 6B
If there is no secrecy about the public purpose for which the land is required, I see no ground for withholding information as to the public purpose from the holder of the right of occupancy and the public.
This is an unusual, but my short answer to the question will however be in the affirmative in view of the printed evidence. There was no evidence that section 44 of the Land Use Act was complied with.
This is a hypothetical and an academic question but my answer to the question is in the affirmative, i.e. that the Court of Appeal is bound by its previous judgments. It is also bound by the judgments of the Supreme Court. The Court of Appeal has not contended the contrary. Since the Court of Appeal sits in 7 divisions, now there exists the danger of decisions delivered in one division conflicting with decisions in another division.
Issues formulated by the Plaintiff/Respondent
With regard to the five issues raised by the plaintiff/respondent, the answer to issue No. 1, in my opinion, is that the burden is on the defendants to plead and prove valid revocation. It is common ground that the plaintiff/respondent was in possession. Since the appellants raised the issue of title and revocation of the right of occupancy, any pleading which does not set out facts which constitute valid revocation of the right of occupancy under section 28 of the Land Use Act will not advance the case of the respondent one inch along the line.
The plea of revocation involves acknowledgment of the existence of a right of occupancy prior to that act of revocation. The burden is therefore on the defendants to plead and prove a valid revocation.
On Issue No.2, the answer to the question posed must be in the negative. The Court of Appeal agrees with the High Court that the 1st defendant/respondent needs to obtain a court order for possession to eject the plaintiff/respondent from the premises in dispute having held that he is a lessee of the premises. The fact that the court of Appeal decided that the order for possession should be made under the State Land Law instead of the Recovery of Premises Law does not create a conflict between the decision of the two courts.
The answer to Issue No.3 has already been set out when dealing with the issues formulated by the plaintiff/respondent.
On Issue No.4, there is no doubt that the manner the defendants committed the trespass demands the severest strictures in condemnation in line with the decision in Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621.
Issue No. 5 as framed is an academic question. It would be otherwise if it had been framed to read:
‘whether the right of occupancy granted or deemed granted to the plaintiff/respondent was revoked according to law or as required by the Land Use Act 1979.
It is the contention of the respondent that to constitute a valid revocation:
(1) The Governor has to serve a notice of revocation on the grantee in accordance with the provision of section 44 of the Land Use Act;
(2) The said notice of revocation must specify the grounds upon which the right of occupancy is being revoked.
(3) The ground so specified must come within those grounds listed in section 28 of the Land Use Act; and
(4) The grantee must be given an opportunity of being heard.
As stated above earlier, the 1st defendant did not appeal against the judgment of the Court of Appeal. It however filed a respondent’s brief the concluding part of which reads:
“Due to the reasons advanced above,’ the 1st defendant/respondent respectfully submits’ that the decisions of the Court of Appeal and the trial court in respect of forfeiture, revocation, re-entry and re-allocation should be set aside, and judgment entered in favour of defendants.”
Under our judicial system in this country, every party not satisfied with decision of the Court of Appeal has a constitutional right to appeal against the decision. See section 213(2) and (3) of the Constitution of the Federal Republic of Nigeria, 1979. This right, under the Constitution, the Supreme Court Rules and the Supreme Court Act: has to be exercised in the manner prescribed and within time prescribed by the Act or extended by the Court. Where the right is not exercised, it is presumed that the parties have accepted the judgment given without question and are not aggrieved. Even where a party has appealed against a decision, the decision is presumed correct until the error complained of is established. See Odiase v. Agho (1972) 1 All NLR. See Folorunsho v. Adeyemi (1975) 1 NMLR 128; See Williams v. Johnson (1937) 2 WACA 253. The presumption of correctness of the decision is stronger where there is no appeal against the decision.
The 1st defendant cannot in the circumstances of this case, it not having appealed and not having filed a respondent’s notice, pray for a variation in the judgment in its favour.
I now proceed to consider the submissions of counsel on the issues formulated.
Professor Kasunmu, S.A.N., dealing with questions 1 and 2, pointed out that despite the fact that the trial court ruled against the plaintiff in respect of all the grounds of challenge contained in the pleadings it went on to invalidate the revocation of the plaintiff’s interest:
(1) on the ground that the particular public purpose for revocation was not stated; and (2) that the subsequent re-allocation to the 3rd defendant was invalid following the decisions of the Supreme Court in Bello v. Diocesan Synod of Lagos (1973) 3 ECSLR (Pt. 1) 330; (1973) 3 S.C. 131.
He then cited the dictum of Ademola, J.C.A. which contained the learned Justice’s assessment of the value of each point made. See p.498 by counsel and reasoning in conflict. It is to be noted that Professor Kasunmu, S.A.N., for 2nd and 3rd defendants/appellants omitted to refer to the dominant reason for the decision of the learned Justice. From line 30 of page 498 of the record to line 10 of page 499, it reads:
“It is here the submission of Chief Williams becomes relevant. Replying on Adolffi Stamm International Nigeria Ltd. v. L.S.D P.C. (supra) that the better course to take is to get on with the hearing of the appeal because both the judgment and the grounds of appeal have raised points of law which this court cannot ignore. If the learned Judge happens to be right on the points of law taken that would be the end of the matter and the objection taken becomes academic but if the judge is wrong that makes a success of the appeal.
I am inclined to agree with Chief Williams. The points canvassed in this appeal are so compelling and of great public interest not only to lawyers but to all the Government in the Federation as well.”
This dictum clearly shows the direction the mind of the learned Justice was moving. It was certainly not in the direction of a retrial. To avoid placing counsel on the wrong trail, it is advisable to emphasise that Ademola, J.C.A. definitely did not decide that appeal shall be allowed and an order of retrial made.
Learned counsel Professor Kasunmu, S.A.N. citing the dictum of Oputa, J.S.C. in Overseas Construction Ltd. v. Creek Enterprises Limited (1985) 3 NWLR (Pt. 13) 407 at 419 and the dictum of Aniagolu, J.S.C. in Amida & Others v. Oshoboja (1984) 7 S.C. 68 at 107 on the binding effect of pleadings filed by the parties stressed and submitted that the address of counsel on an issue is no reason for a decision to be founded on that address if the issues so canvassed are outside the pleadings. Furthermore, the fact that a matter is of great public interest not only to lawyers but also to government is no justification for an appellate court to decide those issues if they are outside the issues formulated before the trial court.
Having held that the burden of proof of the validity of the revocation and re-entry is on the defendants who raised the issue of title in the matter, that, in my view, disposes of this issue. The winding course of the pleadings seems to have taken the learned trial judge and learned Justice on a ride not justified by the issues joined. The claim was a simple one of damages for trespass and an order of injunction. It is necessary to restate a few guiding principles. An action in trespass is based on exclusive possession of the land. See Mohammed Ojomu v. Salawu Ajao (1983) 9 S.C. 22; (1983) 2 SCNLR 156; Amakor v. Obiefuna (1974) NMLR, 331, (1974) 3 S.C. 66. It lies against the whole world except one who can show a better title. See Aromire & Ors. v. Awoyemi (1972) S.C. 1; Amakor v. Obiefuna (supra) at 77.
Trespass is a wrong to possession. It constitutes the slightest disturbance to possession by a person who cannot show a better title. See Abotche Kponugho & Ors. v. Adja Kodadjo (1933) 2 WACA 24 per Lord Alness.
In order to succeed, a plaintiff must show that he is the owner of the land or that he had exclusive possession of it. A trespasser does not by the act of trespass secure possession in law from the person against whom he is in trespass. Jimoh Adelakun v. Sabitiyu Oduyele (1972) 6 S.C. 208 at 210.
A trespasser without claim of right is a trespasser ab initio and the onus is on him to prove that the has a better right to possession in order to succeed in the defence. See O. Solomon & Ors. v. A. R. Mogoji & Ors. (1982) 11 S.C. 1. When trespassers knowingly and unlawfully take possession of lands, the defence of laches is not available to them. See Losupo Akanni & Ors. v. Makanju (1978) 11 & 12 S.C. 13 at 21.
Having regards to the present state of the law therefore unless the appellants can established a bener title than the plaintiff/respondent their entry into the land in dispute constitute an act of trespass. The burden therefore was on the defendants to prove valid peaceable re-entry and valid revocation. Since the pleading of such defences pre-suppose valid prior title. The forceful manner of entry only serves to aggravate the act of trespass and enhance the quantum of damages recoverable.
The pleadings filed by the parties adequately sets out the facts relied on by the parties and the judgment of the learned trial judge dwelt at length on the vital issues for determination in this matter and in my opinion dealt with them adequately. Some of his findings on those important issues have been referred to above and others will be referred to and considered in the light of the argument of counsel in this appeal in the course of this judgment. The first most important averment in the statement of claim filed by the respondent is contained in paragraph 1 of the pleading. It is that “the plaintiff is a lessee of the 1st defendant in respect of the land in dispute, i.e. Plot No.10 in Block D at the Matori Industrial Scheme Layout, Mushin, Lagos.”
As a lessee, the plaintiff acknowledged the 1st defendant as its landlord. Paragraphs 3, 4 and 5 pleaded agreement for a lease for 90 years commencing from 3rd June, 1971.
The first defendant while denying that the plaintiff is its lessee admitted writing the letter offering to grant a lease of the plot and receiving a letter of acceptance of the offer. It went on to plead failure of the plaintiff to pay the balance of the rent and that it was contained to withdraw the offer by letter dated 28th February, 1974. Therefore, plaintiff paid N4,000.00 rent for the period 3rd June, 1971 to 3rd June, 1973. None of them according to 1st defendant was replied to. It then went on to plead in paragraphs 19, 20, 21, 22 and 23 of the amended statement of defence that:
“19. The 1st defendant avers that when it did not receive any reply to all the letters referred to in paragraph 18, it then by a letter Reference ES/MA/10/Block 10125/l0/GOR dated 13th November, 1979 re-entered the premises and forfeited the lease. The defendant will rely on this letter at the trial of this action.”
- The 1st defendant avers that the plaintiff did not reply any of the above letters nor did it come forward to pay up the arrears of rent in respect of this plot which as at 31st March, 1980 stood at N22,969,26 (Twenty-two thousand Nine hundred and sixty nine Naira, twenty six Kobo)
- The 1st defendant avers that subsequent to all these demands the Lagos State Government then forfeited the plaintiff’s interest in the land as the plaintiff did not utilise the premises nor did it develop the premises contrary to the terms of the allocation.
- The Ist defendant further avers that by a revocation order dated 8th February, 1980 brought under section 28 of the Land Use Act 1978 signed by the Commissioner for Economic Planning and Land Matter, Lagos State acting on behalf of the Governor of Lagos State the plaintiff’s Statutory Right of Occupancy in respect of Plot No. 10 Block D, Matori Industrial Scheme was revoked. The defendant will rely on this document at the trial of this action.
- The 1st defendant avers that a copy of this Revocation Order was duly served on the plaintiff.”
From the above, the question arises whether it was the statutory right of occupancy of the plaintiff that was, having regard to the plea of re-entry and forfeiture of the lease, revoked. The question also arises whether there was any right of occupancy for the State land and the plaintiff was only a lessee from the 1st defendant who was administering the land on behalf of the State. If the land is already State land, the order of revocation is null and void as a Governor cannot revoke the right of occupancy of the State Land.
The interest of the lessee in land is not exactly the same as that of a holder of a right of occupancy. A holder of a right of occupancy enjoys a larger interest than a holder of a lease (i.e. lease) although the two interests enjoy a common denominator which is a term of years.
The statement of defence of the 1st defendant raised the issue of re-entry, forfeiture and revocation. Having raised those issues, the onus of adducing evidence to establish these facts is under our law – Evidence Act or Evidence Law squarely on the 1st defendant. He who asserts has the onus to prove what he asserts if he is to succeed.
The question ‘was there a lease between the plaintiff and 1st defendant can therefore be answered in the affirmative. It is settled law that an agreement for a lease is as good as a lease and is a registrable instrument under our laws. Exhibit 10, the offer of a lease having been accepted by plaintiffs. I am therefore in agreement with the learned trial judge, Onalaja, J. when he held as a fact that Exhibit 10 is a valid lease between the plaintiff and the 1st defendant. I also agree with him when he said:-
“to construe an instrument as a lease, the following are requisites and essentials. It must contain words of demise, and must be a complete agreement. There must be an identification of lessor and lessee. The premises and dimensions of the property to be leased. The commencement and duration of the term.”
On the issue of arrears of rent, the learned trial judge found as a fact that apart from the payment made by cheque in Exhibit 16 on 11th May, 1974, the plaintiff has not made any further payment by way of rent to the 1st defendant and by Exhibit 19, letter dated 13th November, 1979, the 1st defendant was still demanding the arrears of rent by giving plaintiff fourteen days ultimatum and for non-compliance, the 1st defendant decided to re-enter or forfeit the lease.
On the issue of forfeiture, the learned trial judge was of the opinion and I agree with him that in order to recover possession or determine the lease, the 1st defendant must take due process of law. In other words, it must do so by due process of law.
The land in dispute is State land formerly administered by the Ikeja Planning Authority but later by the 1st defendant, Lagos State Development and Property Corporation which by operation of law (Lagos State Development and Property Edict No. 1 of 1972 section 8) succeeded to the rights and liabilities of the Ikeja Area Planning Authority. Being State land, proceedings for forfeiture for breach of covenant or condition can only be done under section 18 of the States Land Law Cap. 130 which reads:
“If the rent reserved or payable under a lease under this law or under any ordinance repealed by this law is in arrears or if, there shall be any breach of the lessees covenants or of the conditions of lease whether express or implied, the Principal State Land Officer may serve a notice upon the
lessees specifying the rent in arrears or the covenant or condition of which a breach has been committed and at any time after one month from the service of the notice may commence an action in the High Court or in a Magistrates Court for the recovery of the premises and, on proof of the facts, the court shall, subject to relief on such terms as may appear just declare the lease forfeited and the Principal State Land Officer may reenter upon the premises.”
As the land in question is State land leased out, a revocation of a Statutory right of occupancy under section 28 of the Land Use Act appears inappropriate. Forfeiture of the lease appears in my view to be the proper course of action to take. State land must be distinguished from non-State land. State land is defined in section 2 of the State Lands Law Caps 130 Vo1. 7 Laws of Lagos State 1973 as
“all public lands in the Lagos State which are for the time being vested in the Military Governor on behalf of or on trust for the benefit of the Government of the Lagos State and all land heretofore held or hereafter acquired by any authority of the Lagos State for public purpose or otherwise for such benefit, as well as land so acquired under any enactment.”
Forfeiture of State land or any land is not in law effected by pasting a copy of forfeiture notice on an abandoned Volkswagen beetle car as the evidence of 2nd defence witness shows.
In view of the evidence in the printed record of proceedings, the Court of Appeal was not in error when it observed that the proceedings for recovery of possession of the land in dispute ought to have been taken by the 1st defendant under the States Land Law Cap. 130.
The 1st defendant is public authority created and established by law and all its powers and privilege are derived from that statute Lagos State Development and Property Edict. Unless the common law right of re-entry is given to it by the law, the right of re-entry can only be exercised in the manner set out by statute. Even if the land in dispute were not State land, forfeiture can only be enforced either under the recovery of Premises Law Cap 118 or under the State Land Law for section 4 of the Land Use Act provides that:
“Until other provisions are made in that behalf and subject to the provisions of this Decree, land under the control and management of the Military Governor under this Decree shall be administered-
(a) in the case of any State where the Land Tenure law of the former Northern Nigeria applies, in accordance with the provisions of that law; and
(b) in every other case, in accordance with the provisions of the State Land Law applicable in respect of the State land in the State.”
The learned trial judge held that no valid step was taken to forfeit the lease granted to the plaintiff and justifiably went on to conclude that
“there is no determination of the lease or for forfeiture of the same for nonpayment of rent as the only way is to seek forfeiture in a competent court.”
On the issue of revocation, the Governor definitely has power to revoke a certificate of occupancy for (1) a breach of the provisions which a certificate occupancy is by section 10 deemed to contain;
(2) a breach of any term contained in the certificate of occupancy or in any special contract made under section 8.
See section 28(5)(a) & (b) Land Use Act 1978.
Revocation is a different penal action from forfeiture. It is a deprivation of a right of occupancy. The predisposing causes may be the same. Revocation does not involve judicial process but forfeiture does. Revocation involves a ministerial process to bring it into effect and does not, unlike forfeiture, invariably depend on the default of the grantee or tenant. There is no evidence that the right of occupancy of the plaintiff was revoked for any of the above stated breaches. The revocation was supposed to be for public purposes. See Exhibit 18. Public purposes are defined in section 50 of the Land Use Act and do not include the revocation of the right of occupancy of one grantee for the purpose of vesting it in another. This is on the evidence, what has happened in this case where the statutory right of occupancy granted to the plaintiff was revoked (see Exhibit 18) without complying with the legal formalities and vested in the 3rd defendant/respondent (see Exhibit 20). Public purposes under the Land Use Act have been defined to include:
“(a) For exclusive government use or for general public use;
(b) for use by any body corporate directly established by law or by anybody corporate registered under the Companies Decree 1968 (now Companies and corporate Affairs Decree) as respects which Government owns shares, stocks or debenture:
(c) for or in connection with sanitary improvements of any kind;
(d) for obtaining control over land contiguous to any part or over land the value of which will be enhanced by the construction of any railway, road or other public work or convenience about to be undertaken or provided by the government;
(e) for obtaining control over land require for or in connection with the development of telecommunications or provisions of electricity;
(f) for obtaining control over land required for or in connection with mining purposes;
(g) for obtaining control over land required for or in connection with planned urban or rural development or settlement;
(h) for obtaining control over land required for or in connection with economic, industrial or agricultural development;
(i) for educational and other social services”. see section 50 Land Use Act 1978 No. 6.
When therefore public purpose is stated to be the ground for revocation, any of above purposes is impliedly incorporated in order. If as has occurred in the instant appeal the land taken ostensibly for public purposes in the order of revocation is later discovered to be in use for other purposes, the revocation of the statutory right of occupancy is vitiated and the order becomes unlawful.
I have in Ereku & Ors. v. The Military Governor of Midwestern State of Nigeria & Ors. (1974) 10 S.C. 59 at the trial stage years ago emphasised the need to spell out the public purpose in the notice of acquisition. I would now today give the same advice in cases of revocation. The words of section 28 of the Land Use Act are clear and unambiguous as to what constitutes lawful revocation. Subsection 1 of section 28 reads:
“It shall be lawful for the Military Governor to revoke a right of occupancy for overriding public interest.”
Overriding public interest has been defined in subsection (2)(b) in the case of statutory right of occupancy to include “public purposes” within the state and in subsection (3)(a) in the case of a customary right of occupancy to include public purpose within the State.
Other purposes not specified as public purposes in the section cannot be lawful purpose under the Act. To revoke a statutory right of occupancy for public purposes, the letter and spirit of the laws must be adhered to. Since revocation of a grant deprives the holder of his proprietary right, the terms must be strictly complied with and strictly construction of the provisions made. See Bello v. The Diocesan Synod of Lagos & Ors. (1973) 3 S.C. p.131.
The learned trial judge therefore had justification in concluding that the averment of the 2nd and 3rd defendants that Exhibit 18 vests the land in them and extinguishes the right, if any, of the plaintiff is misconceived. The Court of Appeal was also justified in affirming the decision.
Since BAO Motors is a private company, the courts below were right and correct in holding that a statutory body is not competent to satisfy a private institution in abuse of its statutory powers. Having so held, the conclusion that the 2nd and 3rd defendants consequentially failed to satisfy the court that they had a better title to the land in dispute follows. That disposes the issues of forfeiture, revocation and fair hearing.
There has been concurrent finding both by the High Court and the Court of Appeal that the defendants broke into the land in dispute and did wanton damage. The appellants have failed to persuade me to hold a contrary view. Concurrent findings cannot be interfered with by the Supreme Court unless they are not justified by the evidence and has occasioned miscarriage of justice. See Lokoyi v. Olojo (1983) N.S.C.C. (Vo1. 14) 386; (1983) 2 SCNLR 127; Ojomu v. Ajao (1983) 9 S.C. 22 at 53;(1983) 2 SCNLR 156; Akeredolu v. Akinremi (1989) 3 NWLR (Pt.108) 164.
In conclusion, it is pertinent to observe that issues No. 1 to 4 raised or formulated by the appellant dealt with the plea of revocation. Issue No. 5 dealt with the plea of re-entry. Issue No.6 dealt with the question whether in acquisition of land for public purpose under the Land Use Act, the holder of the right of occupancy must be given a fair hearing under the provisions of section 33(1) of the
Constitution. In this regard, the provision of subsection (6) and (7) of section 28 are germane. They read:
“6. The revocation of right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Military Governor and notice thereof shall be given to the holder.
- The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under sub-section (6) or on such later date as may be stated in the notice.”
The method of service of such notice is prescribed in the provisions of section 14 of the Land Use Act which reads:
“Any notice required by this Decree to be served on any person shall be effectively served on him-
(a) by delivering it to the person on whom it is to be served;
(b) by leaving it at the usual or last known place of abode of the person;
(c) by sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode;
(d) in the case of an incorporated company or body, by delivering it to the Secretary or clerk of the Company or body at its registered or principal office or sending it in a prepaid registered letter addressed to the Secretary or clerk of the Company or body at that office;
(e) if it is not practicable after reasonable enquiry to ascertain the name or address of the holder or occupier of land on whom it should be served, by sending it to him by the description of “holder” or “occupier” of the premises (naming him) to which it relates, and by delivering it to some person on the premises to whom it can be delivered by affixing it or a copy of it, to some conspicuous part of the premises.”
There is no evidence that any revocation notice was served on plaintiff in the manner stated above. The defendant’s witness’s testimony on service of the forfeiture notice on 13th November, 1979 is no compliance. The 4th defendant’s witness’s evidence of how on the 7th of November, 1980 he went on the land with labourers to clear the person moulding blocks on the land and the blocks is very implicating. More so as he was a Principal Executive Officer with the 1st defendant and acted on instruction of the 1st defendant.
The appellants cannot, in my view, take refuge under the contractual right of forfeiture or under the statutory power of revocation vested in the Governor to commit the act of wanton trespass disclosed in the evidence. The validity of these defences was not established and the comments of the learned trial judge and the learned Justices of the Court of Appeal drawing attention to comments and the decision of the Supreme Court in Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621 are justified by the exhibition of force in the entry.
I must not fail to advert my mind to incident and liability for revocation for overriding public interests. Under the Land Use Act, 1978, it is lawful for the Military Governor to revoke a right of occupancy for overriding public interest. (See section 28(1)). Overriding public interest is defined in sub-section (2) of section 28 as:
“(a) the alienation by the occupiers by assignment, mortgage, transfer of possession, sub-lease or otherwise of any right of occupancy, or part thereof contrary to the provisions of this Decree or of any regulations made thereunder;
(b) the requirement of the land by the government of the State or by a Local Government in the State, in either case for public purposes within the State or the requirement of the land by the Government of the Federation for public purposes of the Federation;
(c) the requirement of the land for mining purposes or oil pipelines or for any purposes connected therewith.”
In the instant appeal, the purported revocation by the Governor of the respondents right of occupancy was for public purposes of the State. If the revocation had been valid, the respondents would, under section 29(1) of the Act have been entitled to compensation for the value at the date of revocation of their unexhausted improvements.
Compensation under sub-section 1 of section 28 of the Act would be as respects:
(a) the land for an amount equal to the rent if any paid by the occupier during the year in which the right of occupancy was revoked, i.e. 1979;
(b) buildings, installation or improvements thereon for the amount of the replacement cost of the building, installation or improvement, that is to say, such cost as may be assessed on the basis of the prescribed method of assessment as determined by the appropriate officer less any depreciation together with interest at the bank rate of delayed payment of compensation and in respect of any improvement in the nature of reclamation works being such cost thereon as may be substantiated by documentary evidence and proof to the satisfaction of the appropriate officer;
(c) crops on land apart from any building, installation or improvement thereon, for an amount equal to the value is prescribed and determined by the appropriate officer.”
It is, therefore, in the instant appeal, and having regard to the findings of the learned trial judge on the existence of buildings and installation on the land in dispute, difficult to see how the appellants could have escaped liability to pay compensation for the structures put on the land by pleading revocation under the Land Use Act. The only difference is in the method of proof.
In an action for damages for special damages for trespass, special damages must be pleaded and strictly proved, the value pleaded being normally a reflection of the prevailing market prices. The vital difference between a claim for compensation under the Land Use Act and compensation in trespass is that general damages is only claimable in trespass.
The appeal fails and is hereby dismissed with N500.00 costs to the respondent. The decision of the Court of Appeal is hereby affirmed.M. BELLO, C.J.N.: I had read the judgment delivered by my learned brother, Obaseki, J.S.C. For the reasons stated therein, I agree that the appeal should be dismissed, the judgment of the Court of Appeal be affirmed endorse the order as to costs.
It was not seriously disputed that in 1971, the 1st Defendant had granted a lease of State land for a period of 90 years to the Plaintiff who took possession and made some development thereon. On 7th November 1980, the Defendants their servants and agents broke onto the land and demolished the Plaintiff’s buildings. The land had been granted to the 3rd Defendant by the Government of Lagos State on 7th August, 1980.
The Defendants’ defence was that the Lagos State Government forfeited the Plaintiff’s interest in the land on the ground that he had committed breaches of the terms of the grant to him, to wit, failure to pay ground rents which had been in arrears for many years and failure to develop the land in accordance with the condition of the grant. In the alternative, the Defendants pleaded that the interest of the Plaintiff in the land had been determined by the revocation of his right of occupancy over the land by the Governor of Lagos State under an instrument of revocation dated 8th February 1980 pursuant to the provisions of the Land Use Act, 1978, section 28.
As has been pointed out in the judgment of Obaseki, J.S.C., section 18 of the States Land Law, Cap 130, the Laws of the Lagos State of Nigeria 1973 set out the procedure for the recovery of State land where the lessee commits breach of the covenant or conditions of the lease or fails to pay rents as follows:
“18. If the rent reserved or payable under a lease under this Law or under any Ordinance repealed by this Law is in arrear, or if there shall be any breach of the lessee’s covenants or of the conditions of the lease whether express or implied, the Principal State Land Officer may serve a notice upon the lessee specifying the rent in arrear or the covenant or condition of which a breach has been committed, and at any time after one month from the service of the notice may commence an action in the High Court or in a magistrate’s court for the recovery of the premises, and, on proof of the facts, the court shall, subject to relief on such terms as may appear just, declare the lease forfeited, and the Principal State Land Officer may re-enter upon the premises.”
It is clear from the foregoing that recovery of possession of State land by the State Government or its agent for non-payment of rents or breach of covenant by a lessee may be effected by judicial process or by revocation under section 28 (5) of the Land Use Act. As I would show in due course the Governor did not purport to revoke under section 28 (5) of the Act.
The power of revocation of rights of occupancy and payment of compensation therefor is prescribed under the Land Use Act, which came into force on 29th March 1978. Section I of the Act vested all land comprised in the territory of Lagos State in the Governor of the State. Section 34 provided:
“34(1). The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act.
(2) Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act.
(3) In respect of land to which subsection (2) of this section applies there shall be issued by the Governor on application to him in the prescribed form a certificate of occupancy if the Governor is satisfied that the land was, immediately before the commencement of this Act, vested in that person.”
It follows therefore that at the commencement of the Act, the Plaintiff was deemed to be the holder of a statutory right of occupancy over the land in dispute. Consequently, the Governor had the power to revoke the deemed right of the Plaintiff if any of the conditions enumerated in section 28 of the Act was satisfied.
The section reads:
28(1) It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
(2) Overriding public interest in the case of a statutory right of occupancy means
(a) the alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy of part thereof contrary to the provisions of this Act or of any regulations made thereunder;
(b) the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State or the requirement of the land by the Government of the Federation for public purposes of the Federation;
(c) the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.
(3) Overriding public interest in the case of a customary right of occupancy means –
(a) the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation;
(b) the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith;
(c) the requirement of the land for the extraction of building materials;
(d) the alienation by the occupier by sale, assignment, mortgage, transfer of possession, sub-lease, bequest or otherwise of the right of occupancy without the requisite consent or approval.
(4) The Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes.
(5) The Governor may revoke a statutory right of occupancy on the ground of-
(a) a breach of any of the provisions which a certificate of occupancy is by section 10of this Act deemed to contain;
(b) a breach of any term contained in the certificate of occupancy or in any special contract made under section 8 of this Act; a refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under subsection (3) of section 9 of this Act.
(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder:
(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under subsection (6) of this section or on such later date as may be stated in the notice.”
The revocation of the Plaintiff’s right of occupancy was published in the Lagos State Government Notice No. 86 in the Lagos State of Nigeria Official Gazette No. 25 of 28th May 1981. It was stated therein that the Lagos State required the land “for overriding public interest” and proceeded to revoke the Plaintiff’s right. It is clear from the Government Notice that the right of the Plaintiff, being deemed statutory right of occupancy, was purported to have been revoked by the Governor in exercise of his powers under section 28 (1) and 28 (2) of the Act. Accordingly, the exercise of the powers of the Governor under subsections (3), (4) and (5) of the section are not relevant for the determination of the appeal.
Now, reverting to the relevant provisions of section 28, to wit subsections (1) and (2), it is pertinent to observe that since subsection (2) has defined “overriding public interest” the Governor can only exercise the power of revocation within the defined area. Any exercise of the said power outside the defined area would be contrary to the provisions of the Act and unlawful. Under subsection (2) the Governor can only revoke a statutory right of occupancy if the occupier has alienated the right of occupancy or if the land is required by the Government of the Federation or of the State or a Local Government for public purposes or if the land is required for mining purposes or oil pipelines or any purpose connected therewith.
The evidence shows that the right of the Plaintiff was revoked on the pre of overriding public interest but in reality the land was thereafter granted to the 3rd Defendant, a private person, for its private business. With the exception of revocation on ground of alienation under section 28 (2) (a) or for the requirement of the land for mining purposes or oil pipelines under section 28 (2) (c), the Governor has no right to revoke the statutory right of an occupier and grant the same to a private person for any other purpose than those specified by section 28 (2) of the Act.
For these reasons and the full reasons stated by my learned brother, Obaseki, J.S.C., I hold that the forcible manner by which the Defendants purported to have recovered possession was unlawful and constituted trespass: Governor of Lagos State v. Ojukwu (1986) 1 N.W.L.R. (Pt. 18) 621.M. L. UWAIS, J.S.C.: I have read in advance the judgment read by my learned brother, Obaseki, J.S.C. For the reasons contained in the said judgment, I too will dismiss the appeal.
Accordingly, the appeal is hereby dismissed with N500.00 costs to the respondents.
A. G. KARIBI – WHYTE, J.S.C: I have read the judgment of my learned brother Obaseki, J.S.C, in this appeal. I agree with the reasoning therein and the conclusion that the appeal be dismissed. I also will and hereby dismiss the appeal. I have nothing to add. The judgment of the Court below is affirmed.
Appellants shall pay N500. as costs to the Respondent.
S. M. A. BELGORE, J.S.C: I agree with the judgment of my learned brother, Obaseki, J.S.C., that this appeal has not merit and ought to be dismissed. A party relying on any fact must not only plead that fact but must also profer evidence in proof thereof. Nowhere in the written record is there evidence of the alleged revocation or any notice of revocation of the right of occupancy of the respondent. By our trial process Court relies on what parties have lawfully brought before the Court and their evidence in support of those matters will dictate where the scale of justice tilts. But under no circumstance will the scale be tilted by virtue of the personalities in a case or importance of a case in the eyes of the public, for cases are not decided by public acclaim, it is the lawful evidence that influences the fate of every case. I find no merit in this appeal and for the reasons advanced in the judgment of Obaseki, J.S.C.., which I also adopt as mine, I dismiss the appeal. I make the same consequential orders as in the judgment of my learned brother, Obaseki, J.S.C.
A. B. WALI, J.S.C.: I have had the privilege of reading in advance a copy of the judgment of my learned brother, Obaseki, J.S.C. I entirely agree with his reasoning and the conclusions on all the issues raised and canvassed in the appeal.
From the evidence adduced before the learned trial judge he was justified in making a finding in favour of the plaintiff/respondent on the issue of liability which was subsequently affirmed on appeal by the Court of Appeal. The land in dispute was not vacant at the time of the purported revocation by the Governor of Lagos State and its subsequent allocation to the 2nd and 3rd appellants was null and void as it was not for overriding public interest.
On the question of damages, I affirm the judgment of the Court of Appeal in which it allowed the appeal in part. The award of special damages by the trial court is accordingly set aside and that of general damages in the sum of N2,000.00 as affirmed by the Court Appeal is further confirmed. N500.00 costs is awarded to the Respondent against the Appellants.
O. OLATAWURA, J.S.C.: I have a preview of the judgment of my learned brother Obaseki J.S.C., just delivered. I agree with his reasoning and conclusions. I will also adopt them as mine.
It is not out of place to sound another note of warning to public servants generally on the execution of their duties. Many a time some of them go out of their way by resorting to methods that will embarrass the government or their employers in carrying out simple duties. No government anywhere should condone the violation of its own laws. The breach on the law which sometimes leads to payment of damages is a sad reflection on those who are employed and paid to assist in the implementation of the rules and regulations made under the law. Those who think that might is right and that the Government can do no wrong should better have a second thought. We have long passed that stage.
Public servants who behave as if they are above the law believing that their actions will be approved by the Government are not better than those who deliberately set out on a collision course with the law. A simple case of debt arising from a breach of covenant in a lease gave rise to this claim.
The time has come that a copy of judgment wherein erring officials who set out to serve their personal interests should now be sent to the government so that those who mislead the government should be surcharged for damages incurred by the government as a result of their ill-advised action. Overzealous public servants must be made to pay for their actions.
The laws, rules and regulations for public servants are designed to guide them in the discharge of their public duties. No laws place them above the laws of the land. There is no justification in law for the wanton and savage destruction of the properties of the respondent.
I will also dismiss the appeal with costs assessed at N500.00 in favour of the respondent.